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To CUE, Or Not Worth It?

Question

Three weeks after I got out of the Air Force in 1974, I spent a few weeks in a VA hospital for Hepatitis (apparently a parting gift from my processing out physical or dental exam).  While there, a VSO filed a claim for me.

The actual filing is not in my C-file, so I'm not certain what exactly he wrote, BUT...

While active duty, my STRs contain numerous medical and psychologist reports of depression, sleep disturbances, fatigue, nervousness, etc. that were not part of my life before the Air Force.  (Some relationship and family issues while I was away from home were the "triggers" that sent me spiraling down the black hole of depression.)

Instead of discharging me for depression, the Air Force hung a "Personality Disorder Not Otherwise Specified" on me and gave me a General Under Honorable discharge based on that.

A brief, poorly written 1974 Decision Letter granted SC for the residuals of Hepatitis, as well as for lumbar spine disability.  It then said that my claim for my "nervous condition" could not be adjudicated because SC for "nervous condition" was not a compensable disabilty under the law.  (I don't have the letter in hand, so I'm working from memory.  I will try to find the actual letter, I do have it.)

There was no mention of a right to appeal.  Upon asking the VSO about the denial and a right to appeal, it was explained to me (in so many words) that the appeals process is for arguing about a denial, but there was no right to appeal a condition that VA legally could not consider as a compensable disabilty.

I wonder if this is an "unadjudicated" issue for which I should file a CUE claim, for the following reasons:

1.  In examining my STRs, VA should have seen the reports/treatment for depression, etc. and considered depression and associated symptoms as the "nervous condition".  At the very least, they should have adjudicated a "sympathetic" claim for depression upon discovering that it existed.

2.  In blanketly stating that a condition would not be compensable under the law,  VA then did failed to adjudicate the issues, and would not have allowed appeal because of their erroneous determination that it was not a valid claim.  I've had a few people say I should have appealed, but there was nothing to appeal.  The claim wasn't denied, it was dismissed as unallowable.

3.  In 2010, a VA C&P psychiatrist opined that, based on STRs and my history since then, my long-term (Dysthymic) Major Depressive Disorder actually began in 1973, during my active duty in the Air Force.  It was then rated at 70% (Effective Date 2009), and reduced to 50% in 2011.  

While I was recently granted (by BVA) TDIU and SMC(s) back to 2009, I still feel that I was wronged by the 1974 decision that my claim was invalid.  Maybe nothing would come of a CUE claim, but I wonder if I shouldn't do it just to make myself feel better about it.  I know that the Air Force did not cause my problems with depression;  it was caused by my brain's response to some bad situations.  However, it felt like once I became a bit "defective", they wanted to dump me like a hot potato, and used a convenient method to wash their hands of me and my problems.

 

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I think my central basis for a CUE is that the rater erred by not considering "Nervous Condition" to be a condition that he could adjudicate.  These cases you cite show that it certainly should have been adjudicated, and/or should have been considered as a claim for depression."

YES!   I always say here that CUEs should be short and sweet. But in this CUE, I am adding Many legal citations,

and excerpts from past BVA cases ( based on regulations n affect at time of the 1974 decision, with links), to leave NO stone unturned!

Yes, they should have adjudicated the "nervous condition"! It was a "disability " for others, in 1972, maybe even  back further than that, as revealed by the BVA.

It has been a hectic week for me- and the research takes time, but I sure have everything I need to continue to do it......and am giving it my Best.

The BVA correctly states that:

“To establish CUE based on the failure to consider a particular fact or law, ‘in a pre-February-1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.’” Evans v. McDonald, 27 Vet. App. 180, 188-89 (2014) (en banc) (citing Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005) (emphasis in the original). Thus, in regard to the Veteran and his attorney’s first a ,etc etc"

https://www.va.gov/vetapp18/files8/18125602.txt

That statement is the basis of this whole CUE I am preparing for you because the level for valid CUE , prior to 1990 is quite high.

The above decision however was a denial- yet full of great info- the vet was denied because he had no established inservice  nexus , where as you have that ,per the 1974 SF93, and a subsequent proper MH Award!  

I have learned more from BVA denials of CUE than from their awards.They contain thelegal  pitfalls us Cuerinos need to avoid.

 

 

 

 

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Berta,

The more I read that decision, the more convinced I am that you're spot on in how there was CUE in my case.  I admit there is still a lot I don't know about CUE.  Is it filed like any claim through my VARO, then appealed (if necessary) like a normal claim, such as DRO and then Form 9 to BVA?  Or will it be filed with BVA from the get-go, bypassing the lower levels of VA bureaucracy?

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In reply to any who think that I don't have a valid case for CUE;  you may be right, but maybe not.   Here is an excerpt from the Hill and Ponton legal firm's page discussing CUE (my emphasis on key points):

Quote

A motion for revision is appropriate when the VA erred by incorrectly applying the law that was in effect at the time of the prior decision and when the facts are clear that the claim would have been granted if the law had been correctly applied.  It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly.

It is my firm belief that VA did not correctly apply the law.  And in declaring that they could not "under the law" consider my disability as a valid claim, they did not adjudicate it.  I believe a court of law will agree that if the VA responds to a valid claim by telling you they cannot consider your condition compensable under the law, and they're wrong, it is CUE.  Further, once they state that a claimed condition is not a legally valid claim, it is reasonable to construe that any appeal would not be a legally valid appeal.  I believe that the claim would have been granted if the law had been correctly applied.  As far as the lack of a C&P exam back then to quantify the amount of disability, my employment and legal records from the period could certainly substantiate any rating from 50% to 100%.  The question is, can/will a rating be assigned for an old claim such as mine.  I'm looking for evidence, but I believe I will find that BVA and CAVC have sometimes assigned ratings in cases with drastically earlier Effective Dates granted on appeal. 

At any rate, I guess I'm going to find out, should I live long enough LOL.  I love this site, there is so much that can be learned on hadit.  Thanks all for input, and especially Berta for sharing your expertise!

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"The question is, can/will a rating be assigned for an old claim such as mine.  I'm looking for evidence, but I believe I will find that BVA and CAVC have sometimes assigned ratings in cases with drastically earlier Effective Dates granted on appeal. "

That concerns me as well- but the fact remains that you did not get a C & P, therefore no rating- and you subsequently gained compensation for the MH disability.

My AO IHD death claim was based on no diagnosis and no rating in any prior VA decision.And no C & P.

However the VA determined by medical evidence that my husband's IHD was ratable . for 6 years prior to his death-

then again this was a Nehmer Footnote one claim-

Also when VA awarded direct SC death due to malpraticed ( never diagnosed or treated) AO DMII- they didnt rate that at all but agreed it had contributed to his death. ( 2 negative posthumous C & Ps and three IMOs, )

Maybe I should challenge that award-the ancillary benefits were what I sought- still no rating at all.

The quote you stated is for a Revision of a BVA decision-

You have a VARO decision.  Varo decisions are far easier to CUE than BVA decisions- but not impossible----

Motions for CUE at the BVA are a little different than RO CUES , because BVA is a different legal entity than the RO- who has to follow M21-1MR.

I helped member RSG win a CUE at the BVA years ago but cant remember if it was a CUE against the RO or the BVA.

 

I thought I would have the CUE prepared for you by now- but with holiday company this week and the death at my church, (cooking now for the family meal- will be there for hours today) I think it will get done this coming week.I found many citations of established VA Case Law to help with it.

hopefully things will calm down here-

The quote is great:

" It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly."

Indeed it is! 

Matt Hill, (Hill and Ponton) veterans lawyer, is a member of hadit.

 

 

 

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This is the CUE claim I wrote for you- you can change it and tweek it, and others will chime in too (I hope).

This must be filed with the VARO in N Carolina that denied the claim in 1974.

 

This is a claim of CUE ( Clear and Unmistakable Error), in your July 11, 1974 decision to me ,( as enclosed), under auspices of 38 USC 5109.

 

The violations of established VA case law and regulations at time of this decision are as follows are as follows:

 

38 CFR 4.6:

 

 

 

 

 

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of

Veterans Affairs

to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6

The violation occurs in this VARO statement:

“Your nervous condition is not a disability under the law for which compensation may be paid.”

 

However “nervous condition WAS a disability as of March 1974, as per this BVA decision,

 

 

REMAND Additional development is warranted with respect to the issue of entitlement to service connection for a psychiatric disorder other than PTSD, (also claimed as a nervous condition), for the portion of the appeal period extending from March 18, 1974 to November 25, 1991. “

https://www.va.gov/vetapp11/files2/1113967.txt

 

The BVA also states,in this case:

 

Subsequently, the Veteran's representative has maintained that the 2008 VA examination is inadequate. In arguments presented in July 2008, she maintained that the March 2008 VA examination was inadequate as it did not address whether the condition(s) diagnosed in 1974 were correct and whether a diagnosis of PTSD was warranted/supported at that time. In arguments presented in September 2009, she maintained that the Veteran's problems treated in 1974 were early manifestations of PTSD, and hence should be considered a "primarodial" form of PTSD. In this regard, she has requested that the VARO address the provisions of 38 C.F.R. § 4.125(b), pertaining to a change in diagnosis of a mental condition. The provisions of 38 C.F.R. § 4.125(a) (2010) state that if the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.”

https://www.va.gov/vetapp11/files2/1113967.txt

 

And obviously

I did not receive a C & P regarding the “nervous condition”, and I request that,since I had been diagnosed with service connected lomg term (Dysthymic) (Major Depressive Disorder)which a VA psychiatrist, in a 2010 C & P stated ,had begun 1973, during my active duty in the US Air Force, granted as service connected back to 2009, and I was awarded TDIU and SMC (S) by the BVA, in 2009, that this supports the violation of 38 CFR 4.6 as well as basic and longstanding  VA case law,thus:

 

29 FR 6718, May 22, 1964

Part 4—Schedule for Rating Disabilities

 

Authority:  38 U.S.C. 1155.

 

Source:  29 FR 6718, May 22, 1964, unless otherwise noted.

 

 

Subpart A—General Policy in Rating

 

4.1       Essentials of evaluative rating................................................. 4.1-1

4.2       Interpretation of examination reports...................................... 4.2-1

4.3       Resolution of reasonable doubt............................................... 4.3-1

as well as 38 CFR 4.6

 

  1. Source https://www.benefits.va.gov/warms/bookc.asp#c

  2. I was fully in sound condition when I entered the Miilitary.

    Obviously that changed. I had claimed a “nervous disorder”in the 1974 claim, however the Court has made this fact clear:

    This Court recently interpreted the holdings of Ephraim and Boggs in Clemons v. Shinseki,

    23 Vet.App. 1 (2009). In that case, the Court determined that an initial claim for a particular mental

    condition submitted by a pro se claimant

    cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim

  3.  

    Id. at 5. The Court reasoned that "t is generally the province of medical professionals to diagnose

    or label a mental condition, not the claimant" because as a layperson, a claimant is not generally

    competent to render a diagnosis. Id. At 6. “

    Source:

    UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

    No. 07-1704

    M ICHAEL VELEZ, APPELLANT,

    V.

    E RIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

    On Appeal from the Board of Veterans' Appeals

    (Decided October 9, 2009 )

 

https://www.uscourts.cavc.gov/documents/Velez-1704.pdf


 


 


 

Since I was deprived of a C & P exam, due to the erroneous statement in the denial, as to not havng a compensable disability, which I did have, the C & P exam would have garnered me the correct Depression diagnosis at that time, as well as a proper compensable rating. The clear and unmistakable error on your 1974 denial enclosed, had manifested an altered outcome, to my detriment.


 

Respectfully

Enclosures: List here

the1974 decision

and any other the other inks to VA and CAVC etc.


(sorry for the bullet numbers- cant get them off the post-)

others will chime in and add anything they feel cOuld help ( VA case law only)  

 

 


 


 


 

 

 

Edited by Berta
added brackets to Court decision
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